Citation Nr: 1500507
Decision Date: 01/07/15 Archive Date: 01/13/15
DOCKET NO. 12-16 417 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to a disability rating greater than 10 percent for heart block with pacemaker.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. J. Tang, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 1968 to January 1973, and from June 1983 to March 1999.
This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).
All records on the Virtual VA paperless claims processing system and the Veterans Benefits Management System have been reviewed.
A request for a TDIU due to service-connected disability, when expressly raised by a claimant or reasonably raised by the record, is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009)). However, there is currently no indication in the record that the Veteran is unable to obtain or follow a substantially gainful occupation as a result of his service-connected heart block with pacemaker. Accordingly, TDIU has not been raised by the record and is not before the Board at this time.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran was last afforded a VA examination in April 2012, in which the Veteran was diagnosed with heart block with pacemaker and nonservice-connected coronary artery disease (CAD), cardiomyopathy, and atrial fibrillation. At that time, the Veteran reported that he was hospitalized twice for cardioversions in June and August 2011 at the Mayo Clinic, which were unsuccessful. A repeated A. Fib ablation was recommended by his civilian cardiologists and this was to be scheduled in the near future. The referenced records are not of record, but should be obtained.
Thereafter, a new VA examination is warranted to determine the severity of the Veteran's service-connected heart block with pacemaker. 38 C.F.R. § 4.2.
Accordingly, the case is REMANDED for the following action:
1. Contact the Veteran and request that he provide or identify any outstanding records pertinent to the heart, specifically to include the following:
a. Treatment records from St. Luke's, to include records from Dr. T. and Dr. P, from July 2008 to present.
b. Any updated treatment records from Mayo Clinic.
c. Any updated treatment records from St. Mary's.
d. Any other outstanding relevant private treatment records.
He should be asked to authorize the release of any outstanding pertinent non-VA medical records.
2. Obtain VA treatment records from March 2012 to present.
3. Afterward, please schedule the Veteran for a VA heart examination to determine the current nature and severity of the Veteran's service-connected heart block with pacemaker. Forward the claims file to the examiner for review (to include Virtual VA and VBMS).
After performing all necessary testing, to include METs testing, the examiner is asked to address the current nature, severity, and all symptoms of the Veteran's service-connected heart block with pacemaker.
In so doing, the examiner is requested to attempt (to the extent possible) to distinguish the symptoms that are associated with the service-connected heart block with pacemaker and any other diagnosed cardiac and noncardiac condition which is not a manifestation of the service-connected disorder. Please indicate if it is not possible to attribute the Veteran's symptoms to each disability separately.
The examiner should provide information as to the METs level that is attributed to the Veteran's service-connected heart block with pacemaker.
All opinions must be supported by a complete rationale.
4. Complete the above development and any additional development that is deemed warranted. Then readjudicate the claim for an increased rating, and furnish the Veteran and his representative a supplemental statement of the case if the matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the claim is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).